Towers v The Queen

[1993] HCATrans 329

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S70 of 1993

B e t w e e n -

HELEN MARGARET TOWERS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 27 OCTOBER 1993, AT 12.30 PM

Copyright in the High Court of Australia

Towers 1 27/10/93

MR T.A. GAME: If the Court pleases, I appear for the

applicant, together with my learned friend,

MR S.J. ODGERS. (instructed by C.R.M. Neave,

Managing Director, Legal Aid Commission (New South

Wales))

MR R.O. BLANCH, QC: If the Court pleases, I appear for the

Crown, with my learned friend, MR R. KELEMAN.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

DEANE J:	Mr Game.
MR GAME:	If the Court pleases, this case raises a very

similar point to a point upon which the Court is

currently reserved in a case of Weissensteiner. If

I could take the Court directly to the summing up

at pages 21 to 22. The passage complained of

commences at line 21, on page 21:

Now the Accused has made no statement here

denying any part of the Crown -

case, and one of our submissions is that a question

under section 407(2) of the Crimes Act arises in

relation to that direction.	Then towards the
bottom of the page, she:

has offered no explanation of the Crown Case

apart from what she said to the police at the

time she was stopped as a consideration making

the inference of guilt from the evidence of
the prosecution less unsafe than it might

otherwise possibly appear -

and then at line 11:

When you have a situation where the truth is

not easily ascertainable by the Crown, but

would be expected to be known to the Accused,

then the fact that no answer is forthcoming,

as might be expected if the truth were

consistent with innocence, is a matter which

you may properly consider -

and then various matters are referred to.

Now, that passage and the passage at the top of the page combine two passages from May v

O'Sullivan. The passage at the top of the page is

very close to the direction that was given in

Weissensteiner. We would submit that the direction

here is substantially stronger than the direction

given in Weissensteiner because of that which

appears, starting at line 11, which was referred by

Your Honour Justice Deane in argument in

Towers 2 27/10/93

Weissensteiner as far stronger than the passage

which appears at the top of the page.

This appeal was argued and reserved at a time

before Weissensteiner was an application for

special leave and it was reserved for some months

and then handed down after Weissensteiner's special

leave had been argued but before the hearing of the

appeal.

McHUGH J: But one substantial difference between the two

cases, is there not, is what appears from lines 15

through to 22 particularizes the matters upon which

it is said that you can draw inferences adverse to

the accused by reason of her failure to give

evidence or make a statement?

MR GAME:  Your Honour, these are the matters that the Crown

relied upon for its circumstantial case on

knowledge. Now, to say that:

where the truth is not easily

ascertainable ..... as might be expected if the

truth were consistent with innocence ..... and

you may think the Accused would know -

that is to say that she would know matters proving

her guilt. She denies knowledge of what is in the

parcel.

McHUGH J: She does by a verdict but she has failed to give

evidence about her state of knowledge. Why cannot the jury use that evidence against her in weighing

up the various inferences?

MR GAME: But, Your Honour, that is exactly the same

situation as in Weissensteiner.

McHUGH J: But in Weissensteiner you had a whole lot of

matters.

GAUDRON J:  Does it not, in each case, come down to this:

whether or not the facts called for an explanation?

And if they do and none is forthcoming or none that

is accepted is forthcoming, that is a matter that

can be taken into account.

MR GAME:  Your Honour, they have already got the explanation

that she gave to the police which is left as

evidence of guilt. To say that the absence of an

explanation at trial is something that can be

weighed favouring an inference of guilt, which is

what this comes down to, in my submission,

contravenes the right to silence. It does the very

thing - it adds something to the case against the

accused because she has not said anything at her

trial.

Towers 3 27/10/93

It is not just saying, "This is all the

evidence in the case. There is no other evidence. There is nothing to contradict it." It is saying,

"And there's something more which is she didn't

give you an account and you can use that in

inferring guilt against her."	Now, in my
.	submission, the question of principle cannot come

down to whether or not the circumstances called for

an explanation. Every case in which the Crown

seeks to rely upon circumstances establishing

knowledge calls for an explanation. It is rather

integral to the whole process that that is the

state of affairs.

But if a party in a proceedings says, "Well,

I'm going to not give evidence or make a statement

and submit to the jury that they have not

established beyond reasonable doubt my guilt of the
crime", then why should it be said that their

failure to do that, whether or not an explanation

is called for, is something that can be weighed

against them? So, in my submission, it really does
not make any difference whether or not one says,
"Subjectively speaking, the circumstances of this

case call for an explanation".

McHUGH J: But it is an inference you draw in relation to

particular facts. Take the case we had earlier

today: somebody arrives with drugs in a container

and they fail to give any explanation, why can you

not more confidently conclude the person knew that

the drugs were in the container? You do not have

to.

MR GAME:  Your Honour, it is one thing to draw that

inference; it is another thing to direct a jury

that that is a matter that they can take into

account in drawing an inference of guilt. Now,

naturally enough, the jury will direct their minds
to the fact that there has been no evidence to

contradict the Crown case but, in my submission, it

crosses the line and it adds something to the case

against the accused which is impermissible.

GAUDRON J: What if they rejected the Marion account? Could

the trial judge not have said, "Well, here's a

circumstance in which, really, there is no

explanation for what she did, if you reject that

account. There is no explanation. None has been

forthcoming. You can take that into account, if

you decide that that is what it does, as evidence

that none has been forthcoming because she knew

what was in that parcel."?

MR GAME:  Your Honour, if the jury rejected the Marion

account, then they would use that as evidence that

the applicant had told lies and they would infer

Towers 27/10/93

guilt from that amongst other things. And if there

were no explanation then that would leave the Crown

in a very strong position indeed, but, in my

submission, it is another thing altogether to give

what is a very strong direction along these lines

and, in effect, to invite the jury to infer guilt

from the fact that the applicant has failed to go into evidence or make a statement. So, it really comes down to the question whether or not it is on

one side of the line or the other.

GAUDRON J: Well, does it? Assume you are right, does it

not then come down to the question - if you are

right - was there a miscarriage of justice in the

circumstances, where it might have been open to the

trial judge to say, "Well, you can take it from her

failure to offer a reasonable explanation, an

acceptable explanation, that that is evidence of

guilty knowledge."?

MR GAME: Well, Your Honour, if it comes down to a question

as to whether or not there has been a miscarriage

of justice, then there are other features of the

case which would suggest that there has been. The

jury were incorrectly directed that her selective

answers to questions could be used as supporting an

inference of guilt, and that was acknowledgedly an

incorrect direction, and one of those selective

answers was very important because it concerned

knowledge of the 11.40 telephone call, and the

11.40 telephone call was the only way in which the

Crown - and it was from a piece of paper that a

clerk had entered in which no direct evidence was

given - sought to infer that because the name of

the sender was on that document that it must have

been the applicant who gave that information and

that was - - -

McHUGH J: But she herself admitted that she made a phone

call about 11.40, did she not?

MR GAME:  She said that she was asked if she gave that

information, and she made no reply.

McHUGH J:  No, but she was asked:

Polito said "Did you ring the Comet office

about 11. 40 am?" The Accused said "Yes".

Page 18, line 15.

MR GAME:  Yes, but then at line 22:

Didn't you give those details to the

telephonist so she could make some inquiries?"

The Accused made no reply.

Towers	27/10/93
McHUGH J:	No, I appreciate that.
MR GAME:	So the question remains as to whether or not the

information on the document, which became

exhibit D, I think, was information which was

provided by her, whether she was the source of that

information.

In addition, in this case - and although the

ground was dismissed in relation to this other

matter - the jury were never told that they could

use her denials of knowledge in her favour; they

were simply directed that all that she said to the

police could amount to evidence of lies, but they

were never told that her actual denials of

knowledge was evidence upon which she was entitled

to rely. So, in our submission, by the time one

comes to determine the question of miscarriage of

justice, this applicant has had directions that

really are a series of legal fictions presented

against her in the directions to the jury. They

have not been told that they can use that

material. They have been told that the selective

answers can be used against her and they have been

told that the fact that she did not go into

evidence is a matter from which they can infer

guilt, and the combination of those matters, in our

submission, is strong.

I come back to these questions which were put

as being matters upon which she may have knowledge

or be required to give an explanation. The next is

at line 18, whether she made the phone call at

11.40 or thereabouts. Well, she admitted that she

made the phone call. And then this question,

"What, if any, information she then gave about the

parcel?" Well, the Crown is really pulling itself

up by its bootstraps if it tenders a document,

for a hearsay assertion, and then the fact that the

applicant does not go into evidence and give

evidence about it, is said to be capable of

supporting an inference that she did give that

information to the counter clerk, in circumstances

where that is the very thing that they are trying

to prove in the case.

If I could take the Court back to the passage

at page 21, line 22. It was submitted in the Court

of Criminal Appeal that the passage:

Now the Accused has made no statement here

denying any part of the Crown evidence -

amounted to impermissible comment in breach of
section 407(2) of the Crimes Act. That direction

clearly focuses the jury's attention to bring their

attention to what she could have done from what she

Towers 6 27/10/93

did do. So that part of it is established. The

question is whether or not the words, she "has made

no statement", is a comment on her failure to give

evidence.

Now, in 1992 or 1993, presumably all 12

members of jury would be well aware of the right to

give evidence. A few of them may be aware of the

right to make an unsworn statement. This is an
ambiguous statement. In fact, if it had been an

unambiguous statement, she had made no unsworn

statement, the first question the jury would have

asked, "Well, could she give evidence?". So it is,

in a sense, a deliberately ambiguous statement.

But, by saying, "the Accused has made no

statement", in our submission, that could have no

other effect but to draw to the attention of the

jury that she could have given evidence but did
not, in circumstances where they have been given no

directions as to the possibility of making an

unsworn statement.

So we make the second submission, that that

passage there amounts to a breach of section 407(2)

of the Crimes Act.	Those, in short, are the
submissions.

DEANE J: Mr Game, I am correct, am I not, that no request

for any redirection was made in relation to any of

the matters you have adverted to?

MR GAME:	No, Your Honour.
DEANE J:	The Court need not trouble you, Mr Blanch.

Notwithstanding what has been said by Mr Game

on behalf of the applicant, the Court considers
that there has been no miscarriage of justice in

this case. Accordingly, the application for

special leave to appeal is refused.

AT 12.48 PM THE MATTER WAS ADJOURNED SINE DIE
Towers	27/10/93